You’ve gone through the process of getting the right person on board. You’ve done the advertising, reached out to those “in the know” for contacts, and perhaps retained the services of a recruiting firm (I don’t mind the term “head hunter”). You’ve gone through a number of interviews and narrowed the field to your preferred candidate. You’ve made up your mind and want to wrap this up and get your new team member on board and producing.

So you give them a call and outline the high level terms of the job – salary, vacation, start date. The candidate agrees.

On the first day of work, you present your new hire with the “official” offer in writing and ask them to sign – just a formality, of course. Among a number of provisions and details, the “official” offer has some boilerplate details about termination, such as being according to the Ontario Employment Standards Act (ESA). The candidate signs – their options are limited now that they have resigned their previous position and are ready to start work at your company.

No problem (at the moment), but a few years later when the candidate’s performance is not up to par, or you just need to reorganize, making the candidate’s role redundant, you find that the minimal termination provisions in the ESA are not applicable because your informal call and the candidate’s acceptance of your simple description of the offer, is in fact the agreement which governs your relationship. Instead, the termination provisions will be decided under common law and will typically be significantly more generous than under the ESA.

This example reinforces the advice which we repeatedly provide to clients with respect to offers:

•  Do it in writing
•  Do it in detail
•  Sign and date it
•  Make it conditional on obtaining background check information and employment reference information that is acceptable to you, in your sole opinion
•  Provide for a deadline date and time, preferably 2-3 business days later (you don’t want to provide for a lot of time for your offer to be “shopped” for a better one)

Last minute mistakes in the hiring process can be very expensive and, at the least, can start a new relationship on a sour note when the detailed version of the envisioned employment contract has many more onerous conditions than first outlined in an informal way.

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